Analysis
On 6 August 2003, Cheryle Vallee (the claimant/respondent) visited her 93-year-old father Wlodzimierz Bogusz at his home. Ms Vallee, who lived abroad, told her father that she planned to visit next at Christmas. He replied that he might not be alive by then as he did not expect to live much longer. He handed over the deeds for his unregistered property, a house key, his war medals and a photograph album. The main asset of the estate was his property.
In December 2003 Mr Bogusz died intestate. Ms Vallee had been fostered and then later adopted after her mother and father’s marriage ended in divorce, as her father struggled to raise her, but they had always remained in contact. After her father’s death, Ms Vallee was shocked to learn that the adoption meant she did not inherit his estate.
In 2006, Ms Vallee wrote to the treasury solicitor to claim the property on the basis that it was given to her by a donatio mortis causa. This claim was rejected and the estate was advertised for potential claimants.
A genealogist, Mr Birchwood (the defendant/appellant), discovered surviving relatives in Ukraine where Mr Bogusz was born. Mr Birchwood obtained a grant of letters of administration on behalf of the brother of Mr Bogusz. Ms Vallee similarly wrote to Mr Birchwood to claim the property and on behalf of the next of kin Mr Birchwood rejected the claim. In February 2012 court proceedings were issued seeking a declaration that the donatio mortis causa effected the transfer of the property.
The claim was successful and the defendant was ordered to pay Ms Vallee’s costs of the proceedings on the grounds that Ms Vallee had succeeded in a claim she had had to bring to vindicate her claim and Mr Birchwood had opposed the application for financial gain. Mr Birchwood appealed, stating dominion in the property had not passed, that the gift had not been made in contemplation of impending death and the facts of the case did not bring it within the proper application of the law in relation to donatio mortis causa. He also separately appealed the cost order, criticising Ms Vallee’s evidence and conduct as tending to cast doubt on her account.
Held (dismissing both appeals):
- (1) Mr Bogusz made the gift because he feared he was unlikely to live until Christmas and case law requires only that death is contemplated in the near future rather than expected. Even though he anticipated dying within five months this was still contemplation of impending death.
- (2) There is no reason that Mr Bogusz’s continued enjoyment and occupation of the property up until his death should be regarded as incompatible with the intention to make a gift effective on his death.
- (3) The delivery of the deeds and the handing over of the key prevented Mr Bogusz from transferring it and diminished his control over it.
- (4) The handing over of the keys and deeds, along with what Mr Bogusz said, was sufficient delivery of dominion over the house to constitute a valid donatio mortis causa.
- (5) The judge at first instance concluded Mr Birchwood had accepted the position of administrator in the hope of financial gain and should incur the consequences of doing so.
- (6) The judge was right to state that it was open to Mr Birchwood to take legal advice with a view to deciding whether to resist the claim and that this was purely a matter for legal analysis as the facts were accepted four weeks before the hearing. No criticism of Ms Vallee’s evidence or conduct was made at first instance nor was she cross-examined on her evidence. Therefore, no relevant matters had not been taken into account and the court would not interfere with the judge’s discretion on costs.
Continue reading "Vallee v Birchwood [2013] EWHC 1449 (Ch)"